197 

>y 1 



LIBRMW OF CONGRESS 



f 021 0A8 333 • 



HD 197 
1873 
Copy 1 



Two Per Cent. Fund. 



SPEECH 

or 

HON. ALLEN G/THURMAN, 



('• 



OF OHIO, 

IN THE SENATE OF THE UNITED STATES, FEBRUARY 20, 1873. 







The Senate, as in Committee of the Whole, re- 
sumed the consideration of the bill (S. No. 836) de- 
claring the true construction of a statute. 

Mr. THURMAN said : 

Mr. President : I know that time is so 
valuable that it is the duty of every Senator 
to economize it as much as possible. And 
it is the interest, too, of whomsoever would 
address the Senate now, to speak as briefly 
as he can if he wishes to be listened to. 
I shall therefore endeavor to present, in 
the fewest possible words, the view which I 
take of the question before the Senate. I 
cannot, in the time allowed me, elaborate 
those views as I would do were there ample 
opportunity for that purpose, for I believe 
that if time would allow a fall discussion on 
the merits of this bill it would be promoted 
by such a discussion. But I know that I must 
condense, and therefore, if I can have the 
attention of the Senate, I will endeavor to 
presentsome considerations which, to my mind, 
are satisfactory for the support of this bill, in 
very few words. And in order that I may 
economize time, I pray that I may not be in- 
terrupted in the course of my remarks, unless 
some very important reason for interruption 
should exist. At the close of my remarks I 
shall be very happy to answer any question 
that any Senator may deem it material to put. 

The Senator from Vermont [Mr. Edmunds] 
yesterday treated this claim with something 
more than scorn. He called it a bald claim, 
and said, in effect, that the audacity of the 
thing was its chief merit, and intimated that 
but for outside pressure it would have no 
support within these walls. Now, sir, let 
us see by whom this claim is presented. It is 
presented by solemn resolutions of the Legis- 
latures of three States ; resolutions adopted by 
men acting under as high a sanction of duty 
and as high an obligation of oath as rests upon 
the conscience of any Senator here. Their 
Enem.orial is presented by the three Governors 



of those States, respectfully urging the allow- 
ance of this claim. It went to the House of 
Representatives ; was referred to the Judiciary 
Committee of that body two or three years ago ; 
was reported by that committee favorably; 
came within one vote, I believe, of getting two 
thirds of the votes of that House on a motion to 
suspend the rules for its consideration ; was 
reported again at this session of Congress 
favorably by that committee, whose report is 
upon our tables, and passed that body, if I 
may be permitted to say so, by an overwhelm- 
ing majority. It is supported on this floor by 
the Senators from those States and other Sen- 
ators nowise interested in it. And I submit 
that a claim coming with these sanctions is 
not to be treated as a claim whose audacity is 
its chief merit. 

Why, sir, if the Senator from Vermont, had 
been denouncing an attempt to get money on 
false pretenses he could scarcely have spoken 
more severely than he did. But I say it will 
not do to charge that this claim, presented in 
the way I have said and with the sanctions of 
which I have spoken, is an attempt to get 
money upon false pretenses. I know for my 
own State, that Ohio would scorn to receive a 
hundred times this amount upon any false pre- 
tense whatsoever. Not one dollar of this 
money would that State ever receive if she 
did not believe that it was upon a conscien- 
tious claim ; and what is true of her is doubt- 
less true of the other two States. No, sir ; these 
States are no beggars at your door. They do 
not come here as charity children, as one 
might suppose from the remarks of the Sena- 
tor from Vermont. They come here respect- 
fully, to lay before you the facts of this case, 
and submit to your judgment, whether, upon 
those facts, they are entitled to the relief they 
ask. They come in no sense as beggars. 
They come in no insolent manner either, but 
come simply presenting their claim to your 
consideration and asking you if you find it to 



HDm 

1*13 



be just, as they believe it to be, to enact the 
legislation that is required. 

But, Mr. President, it is not simply the 
sanction of these States that this claim has, 
and which I think should be sufficient to pro- 
tect it from the charge of being an attempt to 
get money under false pretenses. Let us see 
what other sanctions it has; let us see what 
other names are recorded in its favor. I hold 
in my hand the opinions of the following per- 
sons in favor of this claim: the opinion of 
Abraham Lincoln, President of the United 
States: of Thomas A. Hendricks when Com- 
missioner of the General Land Office ; of Judge 
Davis of the Supreme Court of the United 
States; of Judge Drummond of the United 
States district court of Illinois ; of Judge Wal- 
ker of the supreme court of Illinois ; of the late 
Chief Justice Caton of the supreme court of 
that State ; of Judge Cartter of the supreme 
court of this District ; and of Benjamin R. 
Curtis, whom we all know, and upon whom it 
is not necessary for me to pronounce any 
eulogy; not his argument as a lawyer, but his 
solemn opinion ; an opinion asked for, and not 
asked to be one thing or the other, but simply 
and nakedly the true convicions of his mind. 

Nor does it stand upon these sanctions alone. 
I have before me a letter of the First Comp- 
troller of the Treasury, before whom this claim 
would have to go, and I ask that this letter may 
be read ; first, for the purpose of showing 
that even the Department, or at least one of 
its most prominent officers, regards it as 
equitable, and in the next place, to explain 
why it is that some delay has occurred in the 
presentation or settlement of the claim. Be- 
fore I do that, however, 1 ought to say that, 
as appears by the correspondence and facts 
stated in this pamphlet, the consideration of 
this claim was delayed at the instance of Presi- 
dent Lincoln, although he believed it to be per- 
fectly just, delayed because we were then in 
the midst of a war, and he said that it did not 
become a patriotic State like Illinois to press 
a demand on the public Treasury at such a 
time as that. 

Mr. LO(iAN. Read what he said. 

Mr. THURMAN. No, I do not wish to 
take up time ; 1 cannot stop to read it; but I 
will ask that the letter from the First Comp- 
troller which I send to the desk may be read. 

The Chief Clerk read the following letter: 

Tax lsuby Department, 
First Comptroller's Office, 
/•'« bruary 7, L873. 
Sir: In answer to your inquiry 1 have the honor 

to state that 1 did not anally decide upon the two 
per cent, claim of [llinois, although I examined it 
with much care ooo after il came to this office. 

The <-i;iw!i wu equal in its equities with similar 
Kraut i made to the States of A l alia ma. Mississippi, 
ami Missouri, but 1 doubted the construction pul 
upon existing laws by tb of the Stat e, 

1 was the more incline. I i., i triot construction of 

tin- laws, because m j ,,uu statu was largely inter 
i in the question. x*ou asked the Secretary of 
the Treasury to take the "pinion of the Attorney 
Qeneral, 'on I objected to the submission of the 
case to him, beoau c ii the olaim should bo allowed 

ant paid, it WOUld he upon I In- concurren t aotion Ol 
the Attorney (Jem-nil, toe Secretary of t he Ti e:i ur.\ . 

ami the Comptroller, each of whom was a t-u 
of one of the State- interested, ami <-;u-u of a -.pi- 



rate State. I thought that under such circumstances 
a construction to warrant payment should be clear 
and undoubted, otherwise our action might be ques- 
tioned and we censured. The want of equity did 
not cause a failure to allow and certify the claim. 
I am, very respectfully, 

R. W. TAYLER, Comptroller. 

Hon. Isaac N. Morris. 

Mr. THURMAN. Mr. President, that is 
one reason why this claim has not been settled 
at the Department. The decision of Judge 
Otto when he was in the Department of the 
Interior was read yesterday as if that was con- 
clusive of the case. He was a mere subordin- 
ate, and that decision has been overruled in 
one of its most material points. What did he 
undertake to decide ? He undertook to decide 
that he would not even pay the two per cent, 
upon the Indian reservations. In that he was 
overruled and the money was paid. But he 
further took the ground that he would not pay 
the two per cent, upon the sales of the public 
lands, and taking that ground, the question is 
brought here. How brought here ? Brought 
here for this reason : because owing to the 
lapse of time of which I have already spoken, 
and the reason why that lapse of time oc- 
curred, a period so great had elapsed that 
according to the usage of the Department 
that decision of his could not be reviewed and 
reversed, and therefore these parties had to 
come to Congress. So much for that. 

Mr. President, I am apprehensive that in. 

the much speaking on this bill we have lost 

sight perhaps, to some extent, of what the bill 

is. Let us see what it is. It is a short bill, 

and I can read it in a moment : 

Be it enacted, &c., That the true intent and mean- 
ing of the second section of the act approved March 
3, 1857, entitled "An act to settle certain accounts 
between the United States and the State of Missis- 
sippi and other States," is, that all the other States, 
to wit, Ohio, Indiana, and Illinois, which have not 
received the full amount of their five per cent, of the 
net proceeds of the sale of public lands lying within 
their respective limits, as mentioned in their sev- 
eral enabling acts, in money, shall have their ac- 
counts stated, both on the public lands and reserva- 
tions, and such cash balance as has not been paid 
to said States allowed and paid. 

That is the whole of this bill. It is a bill 
declaring the true intent and meaning of an 
act approved March 3, 1857. Well, sir, what 
was that act of March 3, 1857 ? Before I read 
it, however, I should read the act to which it 
referred, an act in regard to Alabama passed 
in 1855. The act in regard to Alabama was 
as follows : 

"That the Commissioner of the General Land 
Office be, and he is hereby, required u> state an 
account between the United States and the State of 
Alabama, for the purpose of ascertaining what sum 
or sums of money are due to said State, heretofore 
unsi 1 1 led under the sixth section of an act of March 
2, L819, lor the admission of Alabama into the Union; 
and that he bo required to include in said account 
the several reservations under the various treaties 
witii the Chickasaw, Choctaw, and Creek Indians 
within the limits of Alabama, and allow and pay to 
the sail State tivo per cent, thereon, as in case of 
other sales. - ' 

Then, two years after the passage of that 
Alabama act, the act of March 3, 1857. referred 
to in the pending bill, was passed, aud it is in 
these words : 

"That the Commissioner of the General Land 



, Office be, and he is hereby, required to state an 
account between the United States and the State 
of Mississippi for the purpose of ascertaining what 
sum or sums of money are due to said State hereto- 
fore unsettled, on account of the public lands in 
said State, and upon the same principles of allow- 
ance and settlement prescribed in the act to settle 
certain accounts between the United States and the 
State of Alabama, approved the 2d of March, 1855; 
and that he be required to include in said account 
the said reservations under the various treaties 
with the Chickasaw and Choctaw Indians within 
the limits of Mississippi, and allow and pay to the 
said State five per cent, thereon, as in case of other 
sales, estimating the lands at the value of $1 25 per 
acre." 

That is the first section. Now, mark it, 
that refers to Mississippi alone. Alabama had 
been provided for by the former act, and when 
this bill was pending, which as introduced, 
related to Mississippi alone, that is, contained 
simply this one section which I have read ; it 
was amended by adding to it a second section 
in these words : 

"That the said Commissioner shall also state an 
account between the United States and each of the 
other States upon the same principles, and shall 
allow and pay to each State such amount as shall 
thus be found due, estimating all lands and perma- 
nent reservations at $1 25 per acre." 

That second section in the most mandatory 
terms required that an account should be 
stated " with each of the other States." What 
is meant by "each of the other States?" 
Each of the other States that were entitled to 
five per cent, according to their enabling acts — 
that there should be paid to them all of that 
five per cent, which had not already been paid. 
Now, mark it, there is not one word in the act 
allowing any set off against the claim of the 
States ; there is not a word that subjects this 
claim of the States to any counter-claim what- 
soever. The only abatement of the claim of a 
State is to be the amount paid to the State." 
That is all there is of it. 

But what then took place ? With this plain 
and mandatory statute before them, tbe De- 
partment undertook to say not that the Gov- 
ernment has paid Illinois, not that it has 
paid Indiana, not that it has paid Ohio, for 
it had never paid to one of them one single 
cent of this two per cent, fund ; but that the 
Department would set off against the amount 
to be ascertained under this act to be paid 
to these States certain moneys which had 
been expended by the Government in the 
construction of the Cumberland road. And 
that is the question now, and the sole ques- 
tion before the Senate, whether or not it 
is right and proper to set off against the 
claim of the States to this two per cent, 
the expenses upon the Cumberland road. 
Mark it, there is not one word in the statute 
that authorizes any such set off; there is not 
one word that seems to contemplate any such 
set-off ; and the action of Congress, as I will 
show in a moment, utterly forbids the idea 
that any such set-off was intended. Missouri 
was in precisely the same category with Ohio, 
Indiana, and Illinois. Under her enabling 
act, her two per cent, was also to be expended 
by Congress in the construction of roads lead- 
ing to Missouri; and yet, after the passage of 



this act of 1857, Congress solemnly decided 
that Missouri should have her two per cent, 
without any deduction whatsoever for money 
expended in the construction of the Cumber- 
land road, aud thus settled by the clearest 
possible decision the question which is now 
before the Senate. It was impossible to de- 
cide that Missouri was entitled to her two per 
cent, without at the same time deciding in 
principle that Indiana, Illinois, and Ohio were 
entitled to their two per cent. They stood in 
principle precisely alike. 

It was said by the Senator from New Jersey, 
[Mr. Frelinghuysen,] if I understood him 
aright, that the two per cent, fund was released 
to Missouri in consideration of a certain rail- 
road that she had built. I do not so under- 
stand it. On the contrary, Government aid 
was granted to Missouri in the shape of a 
donation of land to aid in the construction of 
her railroads. No, sir; Missouri, understand- 
ing this act of 1857 as I understand it, pro- 
ceeded by act of her Legislature to provide for 
the disposition to be made of the two per cent, 
fund to which she was entitled from the Gov- 
ernment, and the Congress of the United 
States ratified that act of the State of Mis- 
souri, disposing of her two per cent. fund. 
There is a solemn adjudication upon this ques- 
tion, made soon after the passage of the act 
of 1857. 

But now, Mr. President, let us see how this 
two per cent, originated. The State of Ohio 
was the first State admitted into the Union in 
which there were public lands ; that is, lands 
belonging to the United States. Kentucky 
was admitted before, but there were no public 
lands in Kentucky. Ohio was the first State 
admitted in which there were any public lands 
belonging to tbe United States. 

Mr. FRELINGHUYSEN. I do not wish 
to interrupt the Senator from Ohio ; but if he 
is under the impression that I made an error 
in reference to Missouri, I can correct him by 
reading the statute. 

Mr. THURMAN. I will thank the Senator 
to send it to me after I am done, and then I 
will look at it. 

Mr. FRELINGHUYSEN. I will call at- 
tention to it myself after the Senator is done. 

Mr. THURMAN. In 1802 Congress passed 
what is known as the Ohio enabling act. It 
was an act entitled an "An act to enable the 
people in the northwestern territory to form 
a State government, and for the admission of 
the State into the Union." That act contained 
certain propositions on the part of the General 
Government, and among them was this prop- 
osition : 

"That one twentieth part of the net proceeds of 
the lands lying within the said State, sold by Con- 
gress, from and after the 30th day of June next, 
after deducting all expenses incident to the same, 
shall be applied to the laying out and making public 
roads leading from the navigable waters emptying 
into the Atlantic, to the Ohio, to the said State and 
through the same, such roads to be laid out with the 
authority of Congress, with the consent of the sev- 
eral States through which the road shall pass." 

That is a proposition that five per cent, of 



the proceeds of the sales of public lands in the 
State of Ohio should be laid out for the pur- 
pose named. But, sir, that was upon a con- 
dition ; and what was that condition? 

" Provided always. That the three foregoing pro- 
positions herein offered" — 

This one about the five per cent, was only 

one of the three — 

" are on the condition that the convention of the 
said State shall provide by an ordinance irrevocable 
without the consent of the United States, that every 
and each tract of land sold by Congress from and 
after the 30th day of June next shall be and remain 
exempt from any tax laid by order or under the au- 
thority of theState, whether forState, county, town- 
ship, or any other purpose whatever, for the term of 
five years from the day of sale." 

There the State was required to give a con- 
sideration for this five per cent. ; and no one 
denies that that consideration has been fully 
paid by the State, and no one denies that the 
consideration was an ample consideration for 
the five per cent. The State did refrain from 
taxing every acre of public land in Ohio for 
five years from the date of its sale. That was 
an extremely onerous provision upon the 
people of Ohio. It would have been an oner- 
ous provision if every acre of land in Ohio 
had been public land sold by Congress, be- 
cause it would have deprived the people of 
that State of all power to levy a land tax at 
all, and would have put the entire burden of 
taxation either upon personal property or the 
polls of the people, because the government 
of Ohio could not tax the public lands so long 
as they belonged to the United States, and 
if for five years it could tax no lands sold 
by the Government it would be utterly with- 
out power to levy a land tax for five years, 
and that at a time when in the youth of the 
State it most needed the power to levy such 
a tax. 

But, sir, that was not exactly the case, and 
now 1 am to mention a circumstance which 
shows how much harder it was upon the 
State. The fact was that at the time of the 
passage of that act only about one half of the 
area of Ohio was public land belonging to the 
United States. In the northern part of the 
State was that large body, composed after- 
ward of ten or twelve counties, called the Con- 
necticut Western Reserve, the land in which 
belonged to the State of Connecticut, not one 
foot of it to the United States. Then, sir, in 
the southern pan of the State was that large 
tract called tin: Virginia Military Reservation, 
not one foot, of which could be sold by the 
United States, because it was reserved to sat- 
isfy military bounties. But that was not all. 
There was a body of land called the Refugee 
Lauds set apart for allowances to refugees from 
Nova Scotia and Canada in the war of tin 1 Rev- 
olution, which was granted lo tbem and not 
sold at all bj the General Government. Then 

in addition was that large body of lands sold 

before the admission of the State into the 
Union, to what, was called the ( )hio Company, 

a company formed in the New England Statea 

to purchase land in ihe norl h western territory 

for settlement by New England people, and 
which embraced nearly one eighth of the 



State of Ohio. Then, besides that, was 
the grant made before the admission of the 
State to the French settlers, known as the 
French grant. Then, in' addition to that, was 
the New Jersey settlement, what was called 
Symmes's Purchase, including the county of 
Hamilton and the city of Cincinnati, and in- 
cluding a large body of land, something more 
than half a million acres. Then, besides ali 
these, Congress saw fit to take out of the body 
of the public lands in Ohio another large 
tract to satisfy what are called the United 
States military bounties. So that, sir, the 
number of acres of public land to be offered 
for sale at the public land offices in Ohio was 
only about one half of the area of the State. 

Then what was the effect of this provision 
in the Ohio enabling act? It was to make 
one half the people pay the whole State rev- 
enue derived from land taxes. It was to bur- 
den the people whose land was not exempt 
from taxation. Every man in the Connecticut 
Western Reserve, every man who owned land 
in the Virginia military district, or in the Uni- 
ted States military district, or in the refugee 
lands, or in the Ohio Company's purchase, 
or in Symmes' purchase, or in the French 
Grant — every one of these men could be made 
to pay a land tax, and thus the burden of sup- 
porting the Government was thrown upon 
about one half the people of that State. Sir, 
there never was a more unwise, or a more im- 
politic, and I must say a more unjust exaction 
than Cougress made of the State of Ohio when 
it thus required that State to put the whole 
burden of the State government for five years 
upon the shoulders of one half of her people. 
It is a thing that never ought to have been 
required of her at all, and that never has been 
required of any State since the admission of 
Arkansas into the Union. None of them since 
admitted has been required to make any re- 
linquishment of the power of taxation. 

Then, Mr. President, this five per cent, was 
no bounty, as the Senator from Vermont spoke 
of it yesterday. An ample and a full and an 
onerous consideration was given for it. It was 
nothing in the nature of a bounty. While on 
this branch of the subject let me say further 
that there is not a grant which has been made 
to the people of the new States that any Sen- 
ator from an old State ought to call a bounty. 
I do not speak of railroad land grants to cor- 
porations. To them I have always been op- 
posed, as the Senate knows, as strenuously as 
any man on this floor; but the grants to the 
States themselves have never been bounties. 
Why, when you gave five per cent., if it had 
been a gift to the settlers of Ohio, when 
you provided that they might have section 
sixteen tor school purposes, for whom were 
you of the eastern States making provision? 
Making it for your own children, making it 
for your own brothers, for your own sisters, 
some of you for your own fathers. Whim the 
Senator says that the old Slates endowed that 
new State, lei me tell him the dowry was to 
their own children ; it was a dowry granted 
to then- own offspring, to their own relatives. 



It was not a grant to a people who did not 
exist ; it was a grant to their own kith and 
kin. 

But, again, sir, it was not a bounty for 
another reason. The Government was a great 
land-owner there. Every inhabitant that it 
could induce to go to that State increased 
the value of its land in the State, and unless 
there should be migration there its lands 
would remain unsold. To those lands it looked 
as a source and means of paying the debt of 
the Revolution. They were, in the first place, 
consecrated to that purpose. It was necessary 
to induce settlers to go there and to hold out 
advantages if they would go there. But, sir, 
let me say that so far from holding out advan- 
tages too great, it never offered advantages 
liberal enough. Let me call the attention of 
the Senate to the fact that there is not one 
foot of land in the whole State of Ohio occu- 
pied by a human being that was not paid for. 
Not one homestead ever was acquired in Ohio 
by settlement. Every acre was paid for, and 
a large part of it, all purchased before 1820, 
I believe, paid for at the high price of two 
dollars an acre in coin. 

Mr. EDMUNDS. I wish to ask my friend 
a question if it will not interrupt him. 

Mr. THURMAN. I would prefer not to be 
interrupted. If the Senator thinks it material, 
however, I will not object. In order not to 
waste too much time, I said at the outset that 
I should prefer not to be interrupted. 

Mr. EDMUNDS. I beg the Senator's 
pardon ; I did not happen to be in at the 
moment. 

Mr. THURMAN. That was the state of 
the case known by Congress when the legis- 
lation that is now under review took place. 
Bat now to come back from these more gen- 
eral considerations, and into which I should 
not have'gone but in reply to the Senator from 
Vermont, this was the contract with the State 
of Ohio: that five per cent, of the net pro- 
ceeds of the public lands should, be used in 
the construction of roads ; and by the act of 
1803 it was provided that three per cent, of 
the five might be appropriated by the Legis- 
lature of the State for roads within the State, 
and the remaining two per cent, were to be 
appropriated by Congress for the construction 
of roads " from the navigable waters emptying 
into the Atlantic, to the Ohio, to the said 
State, and through the same." The money 
was to be employed in the making of roads 
from the navigable waters flowing into the 
Atlantic " to the Ohio;" that means the Ohio 
river, for there was no State then called Ohio, 
and then "to the said State;" that is, the 
State to be formed under this enabling act, 
and then " through the same," that is through 
the State. 

Now, Mr. President, did Congress ever per- 
form that contract? That is a question which 
I wish to submit to the Senate. In the first 
place, what was expected by the parties when 
that compact was made? What was expected 
by the parties was this, undoubtedly', that 
such a road should be made as could be 



made with the fund provided. Every one 
must see that that was the expectation of the 
parties. Here is a provision for making a 
road to the Ohio river, and to the State to be 
formed, and through the State, and a fund set 
apart for that purpose ; and evidently it must 
have been within the contemplation of the 
parties that such a road would be made as 
could be made with the fund thus devoted to 
its construction. It will be said at once that 
that would be a simple wagon-road. Yes, sir, 
it would be a simple wagon-road, and that was 
precisely what was in the minds of the parties 
to that contract ; for at that time there were 
not in all the length and breadth of the United 
States ten miles of turnpike road. There had 
not at that time been constructed on the face 
of the habitable globe one mile of macad- 
amized road; there was not at that time 
leading to the State of Ohio one single wagon- 
road. At that time no man could get to the 
State of Ohio unless he went by water across 
Lake Erie or down the Monongahela or the 
Alleghany river, or unless he went with his 
pack-saddle on his horse, following the blind 
path that had been made across the mount- 
ains. 

What the people of Ohio wanted, therefore, 
was a wagon-road. They wanted it made 
speedily, so that emigration could pour into 
their new State, and they supposed that with 
this fund a good wagon-road could be made ; 
and if Congress had gone to work and made it 
then, it would have been of infinitely more 
advantage to the State than was the tardy con- 
struction of the Cumberland road a third of a 
century afterward. That was what was in 
contemplation by the parties. It never could 
have been in the contemplation of the people 
of Ohio when they agreed to that contract that 
Congress was to undertake some great national 
work, the construction of which for fifty miles 
from the navigable waters emptying into the 
Atlantic would consume all the two per cent, 
fund. That never could have been the idea 
at all. They never would have agreed to that. 
What would have been the use of their agree- 
ing that this fund should be appropriated to 
the making of some magnificent national high- 
way, when before you had built fifty miles of 
that highway, beginning in the State of Mary- 
land, the whole fund would be exhausted, and 
you would have simply a little local road of 
fifty miles in the State of Maryland. They 
never understood any such thing as that, and 
therefore at the very outset, when Congress 
determined to make a great national turnpike, 
it abandoned the true idea of this compact. 
But, sir, it did not abandon it in that alone; 
it never fulfilled it to the letter in any way 
whatsoever. 

Where was the road contemplated by the com- 
pact to be made from? It was to be made •' from 
the navigable waters emptying into the At- 
lantic." That evidently means from waters 
where navigation can exist. It does not mean 
that you shall go to the head of a stream where a 
duck could not swim for want of water and call 
that navigable water ; it means that you shall 



6 



begin at a water which is navigable. Did Con- 
gress ever do any such a thing? No, sir, never. 
Itcommenced this road at the town of Cumber- 
land, in the State of Maryland, where there 
could be no navigation except by a canoe, where 
in ordinary times not even our common flatboat 
of the Ohio or the Mississippi could ever float, 
and where the course of the Potomac is inter- 
rupted every three or four miles by shallows and 
obstructions formed one after another so that 
navigation is utterly impossible. Why, sir, do 
wenotknowit? Where does navigation on the 
Potomac begin ? It begins near the boundaries 
of this District, and it begins no higher up the 
river. Here are Great Falls and Little Falls 
within or near the boundaries of this District, 
and there is not one mile above them that can 
be called the navigable waters of the Potomac 
in any proper sense. And yet Congress saw fit 
to go one hundred and sixty or one hundred and 
seventy miles further up the Potomac and up 
one branch of it and to begin the construction 
of this road at that place as if that were con- 
necting the navigable waters flowing into the 
Atlantic with the Ohio river and the State of 
Ohio. 

But what next? Congress, as I said, com- 
menced the construction of a great turnpike 
road. Whs that a turnpike road that could be 
built out of the two per cent, fund of Ohio? 
Let us see what the fact was. The two per 
cent, fund of Ohio amounts simply to about 
$400,000 ; that is all ; and this great National 
road that Congress undertook cost from 
Cumberland to the Ohio river $2,800,000, 
seven times as much as the whole amount of 
the two per cent. fund. Why, sir, the whole 
amount of the two per cent, fund and nearly 
$800,000 more were expended upon that road 
before it touched the western limits of the State 
of Maryland. The amount expended in Mary- 
land was six hundred and eighty-odd thousand 
dollars, seventy per cent, more than the whole 
two percent, of Ohio; and will anybody tell 
me that it was a fulfillment of the trust in this 
compact to make a turnpike road from the 
city of Cumberland to the western boundary 
of the State of Maryland ? Will anybody say 
I hat that was a compliance by Congress with 
the terms of this compact? 

Did the people of Ohio consent to any such 
thing as that, that their two per cent, fund 
should be taken to make thirty-two miles 
of road in the State of Maryland, where the 
road would cost the most, too, for there is 
where it crosses the great chain of the Alle- 
ghany mountains? 

Congress, then, J say, from the very first, 
repudiated this compact, so far as executing 
it was concerned ; and what did Congress 
mean? It meant to do better than the com- 
pact required; not better for the State of Ohio 
alone, not better for the great Northwest alone, 

hit better I'm- all the people whether Bast or 
West. Ii thought ii would be a scurvy affair 
to build a mere Ordinary wagon-road from Cum- 
berland to the Ohio river and through the 
Slate of Ohio ; and, therefore, although it in- 
tended at first to apply the two percent, toward 



the construction of the Cumberland road, it 
did not treat it as an execution of the compact 
at all, but it treated that work as a great national 
work worthy of a great expenditure from the 
Treasury of the United States. 

That being the case, let us see what took 
place afterward. Congress commenced the 
construction of the National road about 1806. 
It progressed very tardily. The first road was 
to be built with cobblestone paving, or some- 
thing like it. They built some miles of that, 
and afterward threw it all away. They spent 
some one hundred thousand dollars or more 
out of the two per cent, fund of Ohio in build- 
ing a road that had all to be abandoned; and 
instead of that they began the construction of 
a macadamized road. Congress recognized the 
fact — and to this I cannot call the attention of 
the Senate too seriously — that it was not execut- 
ing the compact with the State of Ohio, but that 
it had undertaken a great national work ; and 
it recognized the fact that if it undertook a great 
national work of this kind it was under a 
moral obligation to complete that work. It 
had no right to take our money and expend it 
within twenty miles of the town of Cumberland 
in Maryland. If it saw fit to take the money 
for that purpose, in order to construct a great 
national work, then it was bound in honor and 
in morals to finish that work. And what I 
say of Ohio is equally true of Indiana and 
equally true of Illinois ; and that was the idea 
upon which Congress went, that it would not 
execute this compact as the parties originally 
understood it, but that it would do better ; that 
it would make, not a mere wagon-road, but a 
great national highway, a great national turn- 
pike road, and that in good faith, if it took 
the money to expend at this end of the road, 
it was bound to complete the work of the kind 
which it undertook to construct. 

Sir, here I rest my argument upon this propo- 
sition that Congress afterward utterly aban- 
doned theidea of completing that work; and, 
having abandoned the idea of completing the 
work, it thought it but fair and just not to retain 
the two percent. Congress did not execute the 
compact by making such a road as the parties 
intended. But it undertook to do better; it un- 
dertook to make a great national highway, 
with the obligation inevitably resting upon 
it in morals, in ethics, injustice, to complete 
that work. Afterward, for reasons sufficient, 
it saw fit to abandon the completion of that 
work and to surrender the road to the States 
within which it lay ; and having done that, 
seeing that it had not executed the compact, 
seeing that it had not rendered an equivalent 
to that, by completing the road which it had 
undertaken ; having determined not to com- 
plete that road, having surrendered it to the 
States respectively in which its parts lay, hav- 
ing clothed them with the power to convert 
it from a free road into a tax-paying road, a 
toll-gathering road, it thought it nothing more 
than justice that it should not hold on to the 
two per cent. 

No pen had ever been put on paper in any 
Department of this Government charging the 



States of Ohio, Indiana, or Illinois in account 
with one dollar expended upon the National 
road. No such account legally exists to this day; 
none has ever existed. The money was still 
in theTreasury of the United States, unappro- 
priated, so far as any account in the Treasury 
Department showed, to any such purpose. 
In 1857, in view of these circumstances : that 
Congress had neither literally executed the 
compact, nor executed it substantially, by 
carrying out the plans which it had adopted 
for a great national turnpike ; having aban- 
doned the completion of the road, having sur- 
rendered it to the States, having given to 
Maryland, to Pennsylvania, and Virginia the 
road within their borders, toward which they 
had never contributed one cent except their 
quota out of the national Treasury — having 
given it to them as their property, with full 
power to levy such tolls as they saw fit, then, 
seeing that it had not executed this contract, 
nor completed that which it had undertaken 
as an equivalent to its execution, and having 
determined to abandon all further attempt to 
execute it, Congress justly, wisely, and pro- 
perly, saw fit to provide that the two per cent, 
should be paid to these States. 

Now, sir, that is the statement of the case. 
But that is not all. There were other consid- 
erations which moved Congress to take that 
course. I ought, perhaps, however, to have 
called the attention of the Senate to the time 
when Congress did this thing. Congress began 
the cession of this road to the States in which 
it lay, I think, as early as 1832, the first act of 
cession being the cession to Ohio. And that 
was followed in 1834, if my memory is right, 
by cessions to the States of Virginia, Pennsyl- 
vania, and Maryland. So that you see, in 
1834, twenty odd years before the passage of 
this act of 1857, Congress had determined 
never to complete that road, and it never did 
expend a dollar upon it after those cessions. 
It abandoned its completion utterly and abso- 
lutely. 

But, Mr. President, as I said, there were 
other considerations that induced Congress to 
think it was right in 1857 that this two per 
cent, should not be withheld from the States. 
"What were they? Those other considerations 
were these : Of all the new States in this Union 
those which have been treated — I will not say 
most harshly, but with the least liberality — are 
these three States of Ohio, Indiana, and Illi- 
nois. I have said already, in respect to Ohio, 
that there is not one foot of soil owned by an 
individual in that State that was not paid for. 
Our people never had any homestead grant. 
Furthermore, the grants made by Congress to 
the State of Ohio of lands for purposes of im- 
provement amount to only 2,066,000 acres ; 
to Indiana 3,600,000 acres in round numbers — 
not quite so much — and to Illinois 5,772,000 
acres ; but that includes the grant to the Illi- 
nois Central railroad, which was nearly half 
of it; and in respect to it we all know that 
Congress took the alternate sections out of 
market unless they should be paid for at double 
the then minimum price of the public lands. 



It made the minimum price $2 50 an acre, so 
that in a money point of view Congress never 
lost one dollar by that grant to the Illinois 
Central railroad. On the contrary, it made 
money out of it, for it brought into market a 
large body of public lands that might have 
remained unsold to this day if that grant had 
not been made. Therefore, properly speak- 
ing, the two and a half millions granted to the 
Illinois Central railroad ought to be deducted 
from the grant made to that State, which 
would leave her grants only about three and a 
quarter million acres of land. 

But how was it with the other States that 
have come into the Union and were in it in 
1857? Congress had granted to them as fol- 
lows: to your own State, Mr. President, (Mr. 
Ferry, of Michigan, in the chair,) 13,467,000 
acres ; to Wisconsin, 7,400,000 acres; to Iowa, 
7,000,000 acres ; to Minnesota, 7,000,000 acres. 
That was the state of the case. Congress had 
adopted a much more liberal policy, and not 
only had it granted to these other new States 
three times, and in one case six times, what it 
granted to the people of Ohio, it had done far 
more than that : it had not required them to 
relinquish the right of taxation ; it had put no 
such onerous burdens on them. 

But that is not all. It had given to their 
people first the right of preemption, a most 
valuable right, and which the people of Ohio 
never possessed. Then came the homestead 
law under which thousands and thousands of 
homesteads have been acquired on the pay- 
ment of simply the land office fees, I believe 
about ten dollars. 

Congress you see, therefore, had adopted a 
much broader, and more liberal, aad 1 must 
say a much wiser and more just policy toward 
settlers in the western States ; and in view of 
the fact that it treated them with that liberal- 
ity, it was asking very little, I think, on the 
part of Ohio, the first of the States in that 
great territory, and whose people had paid for 
every acre of their lands, that the paltry sum 
of $400,000 should be paid to them. And it 
was asking very little on the part of Indiana, 
in view of like circumstances, that the like 
sum should be paid to her ; and in the same 
way with Illinois ; it was asking very little, 
and by no means balancing the account upon 
the principle of equality between the States, 
that Illinois should ask that the half million, 
or something like that, of the two per cent, 
fund should be paid to her. 

These I am bound to say were the views of 
Congress when that act of 1857 was passed, 
and they were carried out in the case of Mis- 
souri, which stood in the same category, by 
paying to her her full per cent. And now, 
sir, after other States have been so much more 
benefited, after Congress has dealt so much 
more liberally with them, after the Govern- 
ment has not executed this compact accord- 
ing to the understanding of the parties when 
it was made, nor has it completed that equiv- 
alent for execution, the construction of the 
National road, it does seem to me that the 
claim of these States ought not to be de- 



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nounced as an attempt to get money under 
false pretenses, as a claim whose audacity is 
its principal recommendation. 

A few words more, sir, and I shall not 
detain the Senate longer. I ought, in support 
of the views I have presented, that Congress 
did assume to finish the National road, to refer 
the Setiate to two most able reports made on 
that subject; one in the Senate, and the other 
in the House of Representatives. The one in 
the House of Representatives, made during the 
Twenty-Ninth Congress in 1846, is as conclu- 
sive a piece of reasoning as I ever read. It 
showed that Congress had utterly abandoned 
the idea of completing that road, and investi- 
gated the question whether Congress was bound 
in good faith to complete it, and certainly no 
stronger case could be made out. 

While I am on this branch of the subject, 
allow me to say one thing in regard to Indi- 
ana and Illinois in which they stand on a 
little different footing from Ohio— not but that 
the principle that pays one of the States pays 
all three. I have said that according to the 
understanding at the time the compact was 
made with Ohio no such great national work 
as this was contemplated. I have said that 
there was then no turnpike in all the United 
States, and what the people expected was a 
good wagon-road. That is true, but how was 
ii with Indiana? Indiana came into the Union 
in 1816. How was it with Illinois? She came 
into the Union in 1818 ; and similar provisions 
are found in the enabling acts of both those 
States, and also in the case of Missouri, which 
came in in 1820. What road did they expect 
to be made to their States and through them ? 
Manifestly they expected the Cumberland 
road, the National road, and they had a right 
to expect it, because Congress had commenced 
the construction of that road in 1806, and had 
declared in the first acts on the subject that of 
the amounts expended, certain appropriations 
from time to time should be reimbursed out 
of the two per cent, fund of Ohio. Therefore, 
Indiana, when she made a similar compact 
with the General Government, looking at the 
fact that Congress was building this road, this 
great national turnpike, and that it was ex- 
pending upon it the two per cent, fund of Ohio 
in terms at least according to the acts of Con- 
gress, had a right to say, "this is the road that 
was in contemplation of the parties when we 
made this compact,;" and Illinois had a right 
to say the same thing; and having a right to 
say that, they had a clear right in honor and 
justice to say, " that road you niustcomplete. 
In that they stand on a different footing from 



Ohio. Ohio, when she made her compact, 
had reference to no particular road ; but In- 
diana and Illinois and Missouri must have 
understood this compact as relating to that 
road which was not only projected, but actually 
laid out, and had a right therefore to expect 
the General Government to do what it had 
declared it would do, what it had passed act 
after act to accomplish, to wit, that it would 
complete that road. 

Has it ever done it? Why, sir, it has never 
completed it through Ohio. The truth is, it 
has never completed it to Ohio. It never has 
bridged the Ohio river; but the bridge across 
that river had to be built by private individuals 
at an expense of something like a milliou dol- 
lars. For sixty miles in the western part of 
the State it never completed the road at all. 
It only completed it to the city of Springfield, 
sixty miles east of the western boundary of 
Ohio. It never completed it through Indiana. 
The Senators from Indiana can tell how that 
matter is better than I. It did still less in the 
State of Illinois. It requires, however, no 
testimony of Senators on that subject. " Here 
is the report of Colonel Totten that to finish 
the road to the Mississippi river would require 
an expenditure of nearly $8,000,000 more. 
The amount required to complete it exceeds 
the amount already expended upon it, so that 
Congress left the work half done, and only 
half done when it abandoned the idea of com- 
pleting it at all. 

Under those circumstances, Mr. President, 
not having completed that road which Indiana 
had in her mind when she entered into that 
compact, not having completed that road which 
Illinois had in her mind when she entered into 
that compact, not having made the road that 
the people of Ohio had in their minds when 
they made their compact, with what fairness, 
with what show of equity, or justice, or good 
faith can Congress now say we will retain the 
two per cent, that was provided for in the 
enabling acts of those States? 

Mr. President, I do not know that it is 
necessary for me to take up more of the time 
of the Senate. I should like very well to 
read these acts of Congress, but I suppose 
it is hardly necessary, aud if it were, we are 
so cramped for time that I have not the power 
to do so. 

Before I take my seat I wish to know if there 
is any objection to considering the House bill 
as a substitute for the Senate bill under con- 
sideration. If there is not, I ask that by unan- 
imous consent the House bill may be consid- 
ered as substituted for the Senate bill. 



Priuted at the Congressional Globe Office. 



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